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PETITIONER: RAM CHANDRA MAWA LAL AND OTHERS ETC.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH AND OTHERS ETC.

DATE OF JUDGMENT09/01/1984

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA THAKKAR, M.P. (J)

CITATION:  1987 AIR 1837            1984 SCR  (2) 348  1984 SCC  Supl.   28     1984 SCALE  (1)48

ACT:      Defence of  India Rules, 1971 promulgated under Defence of India  Act, 1971-Rule 114-Interpretation of-Whether State Government can  fix price  of  an  article  declared  to  be essential commodity  under the  Essential  Commodities  Act, 1955 in  respect of  which Central  Government  has  already fixed  price   under  Fertilizer   (Control)   Order,   1957 promulgated under the Essential Commodities Act, 1955.      Defence of  India Rules, 1971-Rule 114 (3)(h)-Scope of- Expression ’any’ article-includes fertilizers.      Interpretation-Rule of-What  is test  for  ascertaining whether  conflict   between  Central   and  State   statutes irreconcilable.      Uttar Pradesh  Fertilizer Prices (Supplementary) Order, 1974-Validity of.

HEADNOTE:      On October 11, 1973, the Central Government in exercise of power  under cl.  (3) of the Fertilizers (Control) order, 1957 promulgated under s.3 of the Essential Commodities Act, 1955,  issued  a  notification  fixing  the  maximum  retail selling price  of certain  fertilizer  which  dealers  could charge from  consumers leaving  with the  dealers a very low margin of profit. Some time later in order to compensate the manufactures for  the higher  cost of  inputs,  the  Central Government issued  another  notification  on  June  1,  1974 fixing a very high retail selling price of the fertilizer to be charged  by the  dealers from  the consumers. The dealers started charging  the higher  price  fixed  by  notification dated June  1, 1974  at the lower rate thus earning fabulous profit. On June 14, 1974 the State of Uttar Pradesh issued a notification (Uttar Pradesh Fertilizer Price (Supplementary) Order, 1974)  in exercise  of power  under rule  114 of  the Defence of  India Rules,  1971 promulgated under the Defence of India Act, 1971. This notification stated that the stocks of fertilizer  acquired upto  May 31,1974 by the dealers and which remained  unsold with  them should be sold only at the price fixed  by the  Central Government’s notification dated October 11, 1973 and not by notification of June 1,1974. The appellants (dealers)  challenged before  the High  Court the legality and validity of the State Government’s notification

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dated June  14, 1974 on the grounds: (1) that the fertilizer in question  having been  declared  an  essential  commodity under the  Essential Commodities Act, 1955, an Act specially enacted  inter  alia  for  regulating  prices  of  essential commodities, its  price could  be regulated  only under that Act and  not under  the Defence of India Rules: (2) that the notification   being    inconsistent   with    the   Central Government’s notification  dated  dated  June  1,  1974  was invalid : and (3) that the notification being discriminatory was violative of Art. 14 of the Constitution. The High Court upheld the 349 validity of the impugned notification and dismissed the writ petitions. Hence these appeals.      Dismissing the appeals by majority. ^      HELD:      (Per Murtaza Fazal Ali and Thakkar, JJ.)      Both the  Essential Commodities  Act, 1955, as also the Defence of  India Rules  of 1971,  are Central  legislations enacted by  the Parliament.  There is  no constitutional  or jurisprudential  limitation   on  the   competence  of   the Parliament to create two avenues or sources of power for the regulation of  prices  of  articles.  Since  Parliament  can constitutionally and validly enact two statutes creating two sources of  power, and since, under both the statutes prices of fertilizers  can be  regulated, there is no illegality in acting under either or both.[357 D-E]      Under the  DIR power has been conferred, inter alia, to regulate the  price of  any  article.  The  expression  ‘any article’  is  wide  enough  in  its  amplitude  to  envelope ‘fertilizers’.  The   fact  that   ‘fertilizers’  have  been declared as  an  essential  commodity  under  the  Essential Commodities, Act,  1955 and its price can be regulated under the powers  conferred by that Act, is altogether immaterial. [357 H; 358 A]      The Centre  and the State both cannot speak on the same channel and  create disharmony.  If both speak, the voice of the Centre will drown the voice of  the State. The State has to remain  ‘silent’ or  it will be ‘silenced’. But the State has  the   right  to   ‘speak’   and   can   ‘speak’   (with unquestionable authority)  where  the  Centre  is  ‘silent’, without introducing disharmony. If the Centre sits only on a portion of  the Chair,  the state can sit on the rest of the portion with  arms thrown  on the  shoulders of  each other. While the State cannot sit on the lap or on the shoulders of the Centre,  both can  certainly walk  hand-in-hand, lending support to  each other,  in a  friendly manner,  towards the same destination.  If the  Centre. has built a wall, had has left a  gap from  which intruders  can infiltrate, the state can fill  the gap  in  the  wall,  and  thus  make  its  own contribution to  the common  cause. What  is more,  each  in theory and  principle. must  be presumed  to be conscious of the need for accord and need for accommodating each other in the interest of ‘NATIONAL HARMONY’. [360C-F]      A general statute applies to all persons and localities within its  jurisdictional scope,  prescribing the governing law upon  the  subject  it  encompasses,  unless  a  special statute exists  to treat  a refinement  of the  subject with particularity  or   to  prescribe  a  different  law  for  a particular locality.  Where, however,  the later  special or local statute is not irreconcilable with the general statute to the  degree that both statutes cannot have a conterminous operation, the general statute will not be repealed, but the special or  local statute  will exist as an exception to its

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terms. [361 B-C]      sutherland’s Statutory  Construction, 3rd Edition. Vol, 1. page 488, referred to      One  of   the  tests   for  ascertaining   whether  the inconsistency is an irreconcilable or intolerable one, is to pose this question: Can the State law be obeyed or 350 respected without  flouting or  violating the Central law in letter and  spirit? If the answer is in the affirmative, the State law  cannot be  invalidated. Not  at any rate when the State law  merely ‘promotes’  the real  object of  both  the laws,  and   is  in   the  real   sense  ‘supplementary’  or complementary’ to the Central law.      In  the  present  case,  the  Central  notification  is altogether silent  on the  ramification regarding sales from out of  existing stocks  acquired by  the dealers  at  lower rates. The  impugned State  notification, on the other hand, deals exclusively  with this  aspect. The State notification speaks on  a refinement  of  the  subject  about  which  the Central notifications is blissfully. unaware and on which it is  altogether  silent.  Both  notifications  can  therefore safely be  construed as  supplementary and  friendly  rather than inconsistent or hostile. [360 B-C]      In  the   instant  case,   assuming   that   there   is inconsistency between  the Central Government’s notification and that  of the  State Government, it does not appear to be an irreconcilable  or intolerable  one, so  as to invalidate the State Government’s notification. In the present case the test answers in favour of the validity of the impugned State notification. The  Central notification  is not  violated if the dealers  sell the  fertilizers from  out of the existing stocks  acquired   at  the   lower  rates,   for  both   the notifications fix  the minimum selling price and the maximum selling price  fixed under  the State  notification  is  not higher than  that fixed under the Central notification. What is more,  the state  notification ‘promotes  and serves’ the object and  purpose  of  both  the  Centre  and  the  State. ‘Promotes and serves’ in the sense, that the manifest object of fixing  maximum ceiling price is to make available to the cultivators who  grow the  food for the NATION to obtain the inputs  at  reasonable  prices  and  to  protect  them  from exploitation so  that the  food production  is not retarded. [362 A-C]      Art. 254(2)  does not  envision Presidential  assent to ‘notifications’ issued  under an  Act (as distinguished from ‘laws made by legislature). [363 F]      Kerala State  Electricity Board v. Indian Aluminium Co. [1976] 1 S.C.C 466 at p. 478, referred to.      The impugned  notification is  not violative of Art. 14 of the Constitution since the very basis of the challenge on the score  of hostile  discrimination is  found to  be  non- existent.[364 D]      (Per Vardarajan J. dissenting)      It cannot  be assumed that Parliament which had already legislated  in   the  Essential  Commodities  Act,  1955,  a permanent measure,  in respect  of  fertilizer  intended  to legislate once  again  and  could  have  felt  the  need  to legislate once  again in the temporary Defence of India Act, 1971 in  respect of the same article especially because what could be  done under  the Defence of India Act and the Rules which may  be framed  thereunder could  as well be done with equal force  under the  Essential Commodities Act and orders which may be passed thereunder. [377 B-C]      Section 3(2) of the Essential Commodities Act lays down that the  Central Government may, having regard to the local

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conditions of any area and other relevant circumstances, fix different prices or rates in respect of different areas 351 and for different classes of consumers. The State Government could have  requested the  Central Government  to act  under s.3(2) of  the Essential Commodities Act and fix a different price or  rate for  the sale  by dealers  in that  State  of fertilizer carried  over from  the stock  held on 31.5.1974. Section 5(b)  of the  Essential Commodities Act provides for delegation of  powers and  says that  the Central Government may, by  notified order,  direct that  the power  to make or issue notifications under s.3 of that Act shall, in relation to such  matters and  subject to such conditions, if any, as may be  specified in  the direction  be exercisable  also by such State  or such  officer or  authority subordinate  to a State Government  as may  be specified in the direction. The Central Government  has not  issued any  direction under  s. 5(b) of  the Essential  Commodities Act delegating its power to issue  notification under  s.3 of  that Act  to the State Government or  any officer  or authority of that Government. The State Government has thus not resorted to the provisions contained in  s.3(2) or  s.5(b) of the Essential Commodities Act, but the proceeded of fix the price of fertilizer on its own under  the Defence  of India Rules, 1971 which it cannot do under  those Rules  and the Defence of India Act, 1971 in respect of the essential commodity. [377 H; 378 A-D]      The Defence of India Act, 1971, which was a general and temporary Act,  and the Rules framed thereunder cannot apply to fertilizer  which is an essential commodity government by the Essential  Commodities  Act,  1955  and  the  Fertilizer (Control) Order, 1957 made under the provisions of that Act. Therefore the  State Government  cannot  without  delegation issue any  notification under  the Defence  of India Act and Rules, 1971  in  regard  to  the  price  of  fertilizer,  an essential commodity  governed by  the Essential  Commodities Act and the Fertilizer (Control) order, 1957. [378 H; 379 A- B]      There does  not appear  to be  any  provision  in  Art. 254(2) of the Constitution for placing any notification made by a State Government under the Defence of India Rules, 1971 for consideration by the President. [380 C]      If the  State  Government’s  impugned  notification  is assumed to  be a  law enacted by that State’s Legislature on Entry 26  of List  II, since the Act of Parliament passed on Entry 33  of List  III and  the Fertilizer  (Control) order, 1957 passed under that Act were already in force, the assent of the  President had to be received in order that the State Government’s notification assumed to be a law enacted by the State’s Legislature  may prevail in the State as required by Article 254(2)  of the  Constitution. There  is  nothing  on record to  show that  the impugned notification of the State Government was  placed before  the President  for his assent and that  his assent has been received. Therefore, the State Government’s impugned  notification even  as  a  law  cannot prevail  over   the  earlier  notification  of  the  Central Government. [389 F-G; 380 C]      Zaverbhai Amaidas v. State of Bombay. [1955] 1 SCR 799, referred to.      There is a clear conflict between the two notifications is respect  of the same essential commodity, fertilizer, for under the  Central Government’s  notification dated 1.6.1974 the price  at which  a dealer  can sell  fertilizer  of  the concerned variety  is Rs. 2000 per ton while under the State Government’s notification  dated 14.6.1974  is only Rs. 1050 per ton  though no  doubt it  is  restricted  to  the  stock

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carried over  from 31.5.1974  which is immaterial in judging the power  of the  State Government  to fix  the price of an essential commodity by a notification 352 made under  the Defence  of India  Rules, 1971 in respect of which the  Central Government  had already  fixed the  price under the Fertilizer (Control) order, 1957. Once the Central enactment and  the Central Government’s notification  govern the price  of an  essential commodity the State Government’s notification issued  in exercise  of the delegated authority under  the  Defence  of  India  Act  and  the  Rules  framed thereunder cannot prevail. [380 F-H]      The two  enactments have  to be read in such a way that there is  no conflict  between them  while giving  effect to them in  their  respective  fields.  of  operation.  If  the Essential Commodities Act, 1955 and the Fertilizer (Control) order,  1957   are  considered   to  apply   exclusively  to fertilizer, an essential commodity, and the Defence of India Act,  1971   and  the  Defence  of  India  Rules,  1971  are considered to apply to other commodities excluding essential commodities there  would be  no conflict  whatsoever between the Essential  Commodities Act  and the Defence of India Act and  between   the  notification   issued  under  Fertilizer (Control) order,  1957 and the Defence of India Rules, 1971. [381 A; 383 D-E]      The author of the two enactments, Essential Commodities Act, 1955  and Defence  of India  Act,  1971  is  the  same, namely, Parliament,  and Parliament must be held to have not intended to  contradict itself  while dealing  with distinct matters or  situations under  those enactments. If the State Governments  are   free  to   fix  their   own   prices   in notifications issued  by them  under the  Defence  of  India Rules,  1971  when  the  Central  Government’s  notification fixing a single price for the whole country in respect of an essential commodity  is in  force that  notification of  the Central Government  will become otiose. The question whether Parliament would  have  intended  such  a  consequence.  The answer can only be an emphatic no. [382 D-E]      Craies on Statute Law (seventh edition) at Page 222 and Maxwell on the Interpretation of Statutes, referred to.      What has  been done  by the  State Government under the impugned notification is utterly lacking in power and cannot be allowed  to stand  merely because  it relates  only to  a comparatively small quantity of fertilizer carried over from the stock  of 31.5.1974  and was  intended  to  benefit  and protect agricultural  consumers  and  prevent  dealers  from making undue profits.[384 F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 1568- 76, 1609-12,  1656, 1672,  1675-80, 1707,  1616, 1644, 1645, 1646, 1671, 1673, 1708 of 1974.      From the  Judgment and  order dated  14th August & 12th September, 1974  of the  Allahabad High  Court in Civil Writ Petition Nos.  3422, 3498,  3430, 3462,  3491,  3429,  3427, 3423, 3472, 3443, 3473, 3474, 3494, 3439, 788, 774, 786,787, 791, 793,  869, 3428,  3502, 3420, 3421, 3528, 3478, 3477, & 3478 of 1974.      Yogeshwar Prashad, S. C. Manchanda, S. K. Bagga, 353 Pramod  Swarup,   O.P  Agarwal,   Ms,  Baby   Krishnan  G.S. Chaterjee. Mrs.  S.Dikshit, R.N.  Trivedi Miss R. Govind for the Appellants.

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    The following Judgments were delivered      THAKKAR,  J.   The  Constitution   which   promises   a socialistic pattern  of Society  in the  preamble and traces the contours  of the  socialistic philosophy which permeates the spirit  of the  Constitutional can  neither command  nor commend the  exercise of  the Constitutional Jurisdiction to issue HIGH  PREROGATVE WRITS  under Art.  32 226  or 227  in order not  to remove  injustice but to do injustice in order not to  prevent exploitation of the poor by the rich, but to permit  such   exploitation.  And   yet  the  CONSTITUTIONAL JURISDICTION of  the Court  (as  polarzed  from  its  ’ERROR JURISDICTION’ has  been invoked  in order to use the hand of the Court  for transferring  money from  the pockets of poor cultivators (who  feed the  Nation) to  the pockets  of  the dealers in  fertilizers (who feed themselves) by Challenging a notification  on technical  grounds. Such  jurisdiction is invoked to  enable the  dealers to  reap a ’rich’ harvest of ’unjust enrichment’ through the instrumentality of the Court at the  cost and  expenses of  the  cultivators.  We  firmly believe   that    the   Court    exercising   CONSTITUTIONAL JURISDICTION  is  not  obliged  to  grant  a  writ  in  such circumstances. But  we  need  not  elaborate  on  the  theme furthermore as  the High  Court has rejected the petition on merits and as we are of the same opinion.      Events leading to the institution of the Writ Petitions under Article  226 of  the Constitution of India giving rise to this  group of appeals (by certificate of fitness granted by the  Allahabad  High  Court)  have  taken  the  following course:      (i)  On October 11,1973 the Central Government issued a           notification fixing  the  maximum  retail  selling           price of  certain varieties  of fertilizers to the           consumers. It  was issued  in exercise  of  powers           under clause (3) of the Fertilizer (Control) order           of  1957   promulgated  under  Section  3  of  the           Essential Commodities Act of 1955. (referred to as           ’Act’ hereinafter).      (ii) Some  time  later,  on  June  1,1974  the  Central           Government  issued   a  Notification  whereby  the           maximum  retail   selling   price   of   different           varieties  of   fertilizers  was  steeply  revised           upwards in order to compensate the ’manufac- 354           turers’ in  the context of the spurt in the prices           of various  inputs. The  extent of the rise may be           illustrated by  taking the  instance of  ’Urea 46%           Nitrogen. Its  price was  revised upwards from Rs.           1090 per ton to Rs 2000 per fon.     (iii) On June 14 1974 the State of’ Uttar Pradesh issued           the    Uttar     Pradesh     Fertilizer     Prices           (Supplementary) Order  1974  in  exercise  of  the           powers conferred  by Rule  114 of  the Defence  of           India  Rules,   1971  adverted   to   as   ’D.I.R.           hereinafter.   Under    this   notification    the           registered ’dealers’ were prohibited from charging           to the  cultivators price in excess of the maximum           price prevailing  immediately prior  to the upward           revision authorised  by the  Central Government on           June 1, 1974 in respect of stocks acquired at pre-           revision rates  held by  the dealers on the eve of           the upward revision of prices.      (iv)  The   net  result   of  the  two  last  mentioned           notifications was  as follows:  The dealers  could           sell to  the cultivators fertilizers at the higher           rates authorised  by the notification dated June 1

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         1974 from  out of  the stocks  acquired thereafter           under  both  the  notifications.  As  regards  the           stocks acquired  after June  1 1974 the registered           dealers were  not  affected  by  the  notification           issued by the State Government under the DIR in as           much as  the notification  issued by  the  Central           Government   authorising   the   upward   revision           remained unaffected  by the notification issued by           the State.  The dealers however could not sell the           fertilizers at  the higher  rates from  out of the           existing stock acquired by them at the lower rates           immediately prior  to the upward revision effected           on  June   1  1974   in  view   of  the  aforesaid           notification issued  by the  State  Government  on           June 14  1974. Taking  the instance  of ’Urea  46%           Nitrogen’ the  net impact  of the  impugned  State           notification  was  that  the  ’dealers’  were  not           permitted to  charge to  the cultivators  Rs. 2000           per ton  instead of Rs. 1090 per ton in respect of           stocks acquired at the lower rates.      (v)   It  was  in  this  background  that  the  dealers           instituted  the   petitions  giving  rise  to  the           present appeals  by certificate,  challenging  the           legality and validity of the 355           impugned  notification   issued   by   the   State           Government on June 14 1974.      Now, the following facts are not in dispute:      (i)   The registered ’dealers’ were entitled to a fixed           profit margin  of Rs.  45 per  ton (and  no  more)           under the terms and conditions of the licence held           by them.      (ii) The  stocks acquired  prior to  June 1  1974  were           meant for  sale to  the cultivators  at  the  pre-           upward revision  rates at  which rates the dealers           had acquired  the stocks.  This stock had remained           unsold with  the dealers  till  than  because  the           cultivators had  not been  able  to  effect  their           purchases till that date.       (iii) The  price rise was authorised to compensate the           ’manufacturers’ in the context of the spurt in the           price of  various ’inputs’  and had  no bearing on           the selling  price for  the ’dealers’ who were not           concerned with the cost of production.      (iv) In  case the  State Government  had not issued the           impugned  notification  dated  June  14  1974  the           dealers would  have been  enabled to  charge about           twice the  prices at  which the  stocks were  made           available  to   them  for   sale  prior   to   the           notification. For  instance ’Urea  46%.  Nitrogen’           made available  to the dealers for effecting sales           to the  cultivators at Rs. 1090 per ton could have           been sold  to the cultivators at Rs. 2000 per ton.           Thus they  would have  been enabled to make a wind           fall bumper  profit of Rs. 910 per ton (in respect           of  ’Urea  46%  Nitrogen’)  as  against  permitted           profit margin  of Rs. 45 per ton (i.e. about 1000%           in  place  of  about  5%)  and  to  secure  unjust           enrichment’   for    themselves   to    such    an           unconscionable  extent   at  the   cost   of   the           cultivators.      It is  in the  backdrop of  these undisputed facts that the  question   regarding  the   validity  of  the  impugned notification dated June 14 1974 issued by the State of Uttar Pradesh came  to be  challenged before  the  High  Court  of

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Allahabad.      The impugned notification was issued in order to meet a problem 356 which arose  in the  peculiar facts and circumstances of the situation.  The   problem  arose   apparently  because   the competent authority  exercising the  powers of  the  Central Government under  the Essential  Commodities Act  overlooked that the dealers who were concerned with the distribution of the fertilizers  to the  cultivators on  a fixed and assured profit margin  of Rs  45 per  ton would  be having with them stock-in-trade obtained  at the  pre-enhancement prices. And that they  might take  under advantage  of the  situation by charging a  higher rate  to the consumers even in respect of the stocks acquired at the lower rates The dealers could and should have  sold the  stock in-trade  acquired at  the pre- enhancement price  at the  hiterto prevailing rates till the old stocks  were exhausted.  That is  what would  have  been expected of  them having  regard to  the fact that they were getting a fixed and assured margin of profit of Rs. 45/- per ton and  that the  enhancement of the price was necessitated and made  solely to  neutralize the  rise in the cost of the inputs which  phenomenon affected  only the  ’manufacturers’ and not  the ’dealers’.  There was  therefore no occasion or justification on  their part  for charging a higher price to the consumers  in regard  to the  sales  effected  from  the existing  stocks   acquired  at   the   lower   rates.   The notification issued by the Central Government on June 1 1974 was silent  on the  question of selling prices in respect of sales from out of stocks acquired earlier at the lower rate. Since the said notification issued by the Central Government was silent  the State  Government which appears to have been more vigilant  stepped in  and exercised  powers which  were conferred on it by the DIR.      The challenge  before the  High Court was made on three main grounds, viz:      (A)     The  Central   Government   having   issued   a           notification  in  exercise  of  powers  under  the           Essential   Commodities   Act   1955   the   State           Government could  not  have  issued  the  impugned           notification under  the Uttar  Pradesh  Fertilizer           Prices  (Supplementary)   order  1974   issued  in           exercise of the powers conferred under Rule 114 of           the ’DIR.  The power  to fix  the maximum price in           respect of  fertilizers could  be  exercised  only           under the  Essential. Commodities  Act it  being a           special Act  and could  not have been exercised by           the State Government by issuing an order under the           ’D.I.R.’      (B)   Even if  the State  Government had  the power  to           issue 357           the notification under the D.I.R. the notification           was invalid  by reason  of its  inconsistency with           the notification  issued by the Central Government           on June 1 1974 under the Essential Commodities Act           1955.      (C)  The impugned notification was violative of Article           14 of the Constitution of India.      The High  Court of  Allahabad negatived  all the  three contentions  by   an  extremely  well  considered  and  well reasoned judgment.  In  the  present  group  of  appeals  by certificate the  original petitioners  have  reiterated  the same contentions before this Court.      Re:  Ground  A:  The  argument  in  substance  is  that

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Essential Commodities  Act 1955 is a special Act under which the  price  relating  to  a  commodity  declared  to  be  an essential commodity  can be regulated. The power to regulate the price  in respect  of such an essential commodity cannot therefore be  exercised under Defence of India Rules 1971 or under any other provision of law.      Now, both  the Essential  Commodities Act  1955 as also the Defence  of India Rules of 1971 are Central legislations enacted by  the Parliament.  The ’D.I.R.’  were brought into force by  the  Parliament  in  1971  in  order  to  meet  an emergency  situation.  The  legislative  competence  of  the Parliament to  enact the  legislation.  On  the  subject  in question namely  fixation of  prices of  all articles is not questioned. The Parliament having competence to legislate in regard to  the subject has enacted both the legislations one in 1955 another in 1971.      The impugned  notification has  been issued  under  the latter statute.  The ’D.I.R.’  having been  enacted later it cannot and  it has  not been  contended that the doctrine of repeal is  attracted. Since  there is legislative competence since the statute is not eclipsed by the doctrine of express or implied  repeal how  can the  power exercised  under  the valid statute  be assailed  ? The  only argument  advanced a misconceived one  in our  opinion. is  that since  the ’Act’ deals with  essential commodities  and fertilizer  has  been declared under  the Act  as an essential commodity the power conferred by  the ’D.I.R.’ cannot be exercised in respect of regulation of  the price  of such a commodity or article. It is not  disputed that under the DIR power has been conferred inter-alia to  regulate the  price  of  ’any’  article.  The expression ’any article’ is wide enough in its amplitude 358 to envelope  ’fertilizers’. The fact that ’fertilizers’ have been declared as an essential commodity and its price can be regulated  under   the  powers   conferred  by  the  Act  is altogether  immaterial.   There  is   no  constitutional  or jurisprudential  limitation   on  the   competence  of   the Parliament to create two avenues or sources of power for the regulation of  prices  of  articles.  There  is  nothing  in principle or  precedent to  support the proposition that two avenues or  sources of power cannot be validly created. What then is  the fabric  of the  challenge  ?  The  only  answer offered by  the  counsel  is  that  the  Act  is  a  statute specially enacted inter alia for regulation of the prices of commodities  declared  to  be  essential  and  therefore  in respect of  such commodities the power can be exercised only under the  Act. We  are unable  to accede  to this  argument Since as  discussed earlier  Parliament can constitutionally and validity  enact two  statutes creating  two  sources  of power  and   since  under   both  the   statutes  prices  of fertilizers can  be regulated;  there is  no  illegality  in acting under  ’either’  or  ’both’.  Counsel  however  seeks support from  the following  passage from  Craies on Statute Law(1)           "Acts of  Parliament some  times  contain  general      enactments relating  to the whole subject-matter of the      statute and  also specific  and  particular  enactments      relating to certain special matters; and if the general      and  specific   enactments  prove  to  be  in  any  way      repugnant to  one another the question will arise which      is to  control the  other ? In Pretty  v. Solly. (1859)      26 Beav.  606 610.  Romilly M.R. stated as follows what      he considered to be the rule of construction under such      circumstances. "The  general rules"  said he "which are      applicable to  particular  and  general  enactments  in

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    statutes are  very clear;  the only  difficulty  is  in      their application.  The rule is, that whenever there is      a particular  enactment and  a general enactment in the      same  statute   and  the   latter  taken  in  its  most      comprehensive sense  would over  rule  the  former  the      particular enactment  must be operative and the general      enactment must  be taken to affect only the other parts      of the statute to which it may properly apply."                                   (Emphasis added)      It is  overlooked that  the  said  passage  deals  with different pro- 359 visions in  the "same" statute. That when there is a special provision in  the very  same statute  in regard to a subject matter the  special provision of the statute will ordinarily prevail in rivalry or competition with the general provision is a proposition with which there is no quarrel. But then we are not  at all  concerned  with  any  rivalry  between  two provisions of  the ’same’  statute. We  are faced  with  two enactments by  the same legislature which create two sources of power  to achieve  the same  purpose. To  repeat what has been observed  earlier there is no legal bar to creating two sources of  power. And there is no authority in principle or precedent for  contending that  one source  of power is more valid than the other. Or that the power validly conferred by the same legislature can be exercised only under one and not the other  of the two statutes leaving aside the question of irreconcilable or  intolerable inconsistency.  We  therefore confirm the view of the High Court and repel the challenge.      Re: Ground B: The validity of the impugned notification issued by  the State  under the  ’DIR’ is  assailed  on  the ground that it is inconsistent with the earlier notification issued by  the Centre.  As  discussed  earlier  the  Central notification does  not ’specifically’ deal with the question as regards  selling price  in  respect  of  sales  from  the existing  stocks   acquired  by  the  dealers  at  the  pre- enhancement prices  which remained  unsold with  them as the cultivators could  not effect  purchases till then. In other words the  Central notification  does  not  deal  with  this ramification at  all. It  does not  show awareness  of  this dimension and  is altogether  silent  on  the  subject.  The impugned State  notification issued  later on the other hand deals specifically pointedly and solely with this dimension. It is  in this  perspective that  the issue has to be judged bearing in  mind the  undisputed position  that there  is no Centre-State conflict  involved in  the sense  that (1)  the Centre which  is not  even impleaded  as a  party  does  not question the  power of  the State  or the  validity  of  the notification as  impinging on its (Centre’s) jurisdiction or authority;  (2)   Centre  has   not  asserted  its  superior authority from the standpoint of Centre-State-power equation in order to supersede the State notification.      The question  clamoring for  solution in  this scenerio has two facets viz:      (1)  Whether there  is any  inconsistency  between  the           Central notification on the one hand and the State           notification on the other and; 360      (2)  whether the  inconsistency is an irreconcilable or           intolerable one:      Is there inconsistency?      The  Central   notification  as  discussed  earlier  is altogether silent  on the  ramification regarding sales from out of  existing stocks  acquired by  the dealers  at  lower rates. The  impugned State  notification on  the other  hand

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deals exclusively  with this  aspect. The State notification on speaks  on a  refinement of  the subject  about which the Central notification  is blissfully  unaware and on which it is altogether  silent. The  two do  not  overlap.  There  is therefore no real inconsistency. The principle may be stated thus. The Centre and the State both cannot speak on the same channel and  create disharmony.  If both speak, the voice of the Centre  will drown the voice of the State. The State has to remain  ’silent’ or  it will be ’silenced’. But the State has  the   right  to   ’speak’   and   can   ’speak’   (with unquestionable  authority)  where  the  Centre  is  ’silent’ without introducing disharmony. If the Centre sits only on a portion’ of  the Chair  the State can sit on the rest of the portion with  arms thrown on the shoulders of each other, in a friendly  manner towards  the  same  destination.  If  the Centre has  built a  wall and  has left  a  gap  from  which intruders can  infiltrate the  State can fill the gap in the wall and thus make its own contribution to the Common Cause. What is  more each  in theory and principle must be presumed to be  conscious  of  the  need  for  accord  and  need  for accommodating  each  other  in  the  interest  of  ’NATIONAL HARMONY’.      The Centre can object to the State speaking on the same channel  or  sitting  on  its  shoulders  and  perhaps  even override the  State.  But  the  Centre  and  the  State  can certainly accommodate each other in a friendly spirit in the overall NATIONAL  INTEREST when  both of  them are trying to supplement  each   other.   In   the   present   case   both notifications can  safely be  construed as supplementary and friendly rather  than inconsistent  or hostile.  The  Centre does not  question to  the State  speaking on  the nuance on which the  Centre has maintained silence. There is therefore no real  element of  inconsistency in the two notifications. The following passage extracted from Statutory 361 Construction by  Sutherland (para  2022(1),) shows  that the aspect relating  to ’refinement’ is a well recognized factor and that  the state  law can be treated as an exception when the inconsistency is not irreconcilable :-           "A general  statute applies  to  all  persons  and      localities within its jurisdictional scope, prescribing      the governing  law upon  the subject  it   encompasses,      unless a  special statute  exists to treat a refinement      of the  subject with  particularity or  to prescribe  a      different law for a particular locality. Likewise where      a later  statute  adapted  for  a  particular  locality      conflicts with a general law of state-wide application,      the special  or local  law will  supersede the  general      enactment. Where,  however, the  later special or local      statute is  not irreconcilable with the general statute      to the     degree that  both  statutes  cannot  have  a      coterminous operation,  the general statute will not be      repealed, but  the special  or local statute will exist      as an exception to its terms."                                             (Emphasis added)      Assuming for the sake of argument that it is considered to be  an  inconsistency,  it  does  not  appear  to  be  an irreconcilable or intolerable one so as to invalidate it, as will be presently shown. Is the  alleged inconsistency  irreconcilable or intolerable one ?      There are  degrees of  inconsistency in  the context of conflict  of   laws.  There   can  be  apparent  or  surface inconsistency which  may be  considered  as  a  non-hostile, tolerable, benign, one, subject to the unquestioned power of

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the Centre to override the State if so minded. On principle, every  apparent  inconsistency  cannot  be  presumed  to  be hostile or  intolerable. More  so when  the Centre  does not even raise  a whisper  of discord.  One  of  the  tests  for ascertaining whether  the inconsistency is an irreconcilable or intolerable  one, is to pose this question: Can the State law be obeyed or respected without flouting or violating the Central law  in letter  and spirit ? If the answer is in the affirmative, the State law cannot be invalidated. Not at any rate when  the State  law merely ’promootes’ the real object of both the 362 laws,  and   is  in   the  real   sense  ’supplementary’  or ’complementary’ to  the Central law. In the present case the test answers in favour of the validity of the impugned State notification. The  Central notification  is not  violated if the dealers  sell the  fertilizers from  out of the existing stocks  acquired   at  the   lower  rates,   for  both   the notifications fix  the maximum selling price and the maximum selling price  fixed under  the State  notification  is  not higher than  that fixed under the Central notification. What is more,  the State  notification ’promotes  and serves’ the object and  purpose  of  both  the  Centre  and  the  State. ’Promotes and  serves’, in  the  sense,  that  the  manifest object of  fixing maximum ceiling price is to make available to the  cultivators who  grow the  food for  the  NATION  to obtain the  inputs at  reasonable prices and to protect them from  exploitation  so  that  the  food  production  is  not retarded. It  is not  contended even by the petitioners, for the very  good reason  that it  is  incapable  of  being  so contended, that  the object  of the  price regulation  is to enable the  dealers to  make unconscionable profit. Thus the impugned State  notification promotes rather than ’defeats’, the ’life-aim’  of Central  as also the State notifications. It ’helps’  rather than  ’hurts’ the objectives and goals of the  Centre,   and  there   is  no  conflict  whatsoever  of ’interest’, ’purpose’,  or ’perspective’. The State has done only that  which the  Centre presumably  would have  readily done if  it was fully aware of the situation from all angles of vision. For, the only impact of the impugned notification is that  the ’cultivator’  for whose  protection  the  price regulation is  essentially made,  is saved from exploitation without hurting  the legitimate claim of the dealer, who, in any case, gets his fixed profit margin of Rs. 45/- per ton.      In  Australian  Boot  Trade  Employee’s  Federation  v. Whybrow Co.,(1)  the High  Court of  Australia in a somewhat similar situation  held  that  there  was  no  inconsistency between a State law fixing a minimum wage for workers in the boot trade of 1$ per hour and a federal law fixing a minimum wage for  the same  workers of  1-1/2 $  per hour.  Speaking through Barton, J. the court observed :-           "The determinations of the wages boards (in effect      the State  law) and  the proposed award (in effect, the      Commonwealth law)  are courched  in the  affirmative in      respect of  the material part of each, the provision as      to  the  minimum  wage.  None  of  them  prescribed  an      inflexible rate. The (State) determinations prescribe a      minimum and it is in each case 363      lower  than   the  minimum   named  by   the   proposed      (Commonwealth) award.  By paying  the latter minimum an      employer will  be obeying  both laws.  The  affirmative      words of  the (Commonwealth)  award, therefore,  do not      "impart a  contradiction" between  it and  the  (State)      determinations.  It  is  impossible  to  say  that  the

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    employer cannot  obey the  one without  disobeying  the      other. Therefore,  the former  and the latter may stand      together. Therefore, according to the proper test, they      are not inconsistent."                                             (Emphasis added)      It would  thus  appear  that  in  a  somewhat  parallel situation the  Australian High Court had taken the view that since both  laws can be obeyed without disobeying any, there is no conflict. In the present case also an endeavor must be made to  place a harmonious interpretation which would avoid a collision  between the  two. Another way of looking at the problem is this: The impugned notification, though issued by the State,  has its  source of power in the ’DIR’ which is a Central Statute  enacted by  the Parliament.  The  State  is merely an  instrumentality for  executing the purpose of the Central Act.  The impugned  notification which is ’later’ in point of  time must,  therefore, prevail  to the  extent  it ’speaks’ on  the refinement or nuance of the matter on which nuance the  earlier notification is ’silent’. In any view of the matter,  therefore, the  challenge  from  this  platform cannot succeed.      It may  be mentioned  that a  half-hearted argument was advanced  that   Art.  254(2)   would   be   attracted   and Presidential assent  would become necessary in order to give effect to the impugned notification. There is no merit in it in as  much as  Art. 254(2)  does not  envision Presidential assent  to   ’notifications’  issued   under  an   Act   (as distinguished from  ’laws made  by legislature’) as has been observed by  a Constitution  Bench of  this Court  in Kerala State Electricity  Board v. Indian Aluminium Co.,(1) wherein Alagiriswami, J.  speaking for  himself  and  for  Bhagwati, Goswami and Sarkaria JJ. says:-           "Was it  necessary to  get the  President’s assent      for this  notification as  contended  by  some  of  the      respondents ?  Quite clearly no Presidential assent was      possible to  the notification.  Article 254(2) does not      contemplate Presidential 364      assent to  notifications  issued  under  the  Act.  The      article contemplates   Presidential assent only to laws      made by  the legislature  of a  State." This  ground of      attach also accordingly fails.      Regarding ground (C): The appellants contended that the impugned notification  was  violative  of  Art.  14  of  the Constitution   of  India  and  was  therefore  invalid.  The argument was  advanced on  the  assumption  that  the  State Government  had   permitted  governmental  agencies  falling within the  definition of ’dealer’ in the Fertilizer Control Order, 1957  to sell  the stocks  held by  the said agencies immediately  preceding   the  issuance   of   the   impugned notification dated  June 1,  1974 at  the higher rates. This allegation has  been controverted  by  the  State  of  Uttar Pradesh. A  reference to  the counter-affidavit sworn by the Accounts Officer,  Fertilizers and  Manuals  Directorate  of Agriculture, field  in C.M.P. No. 6773 of 1974 clearly shows that  the   State  Government   had  not  granted  any  such permission. Thus,  the very  basis of  the challenge  on the score of  hostile  discrimination  is  found    to  be  non- existent.  The   High  Court   was  perfectly  justified  in rejecting this  contention. We,  therefore, confirm the view taken by the High Court.      Thus all  the grounds  called into aid by the appellant for challenging  the impugned  notification are  found to be devoid of substance.      Under  the  circumstances  the  appeals  fail  and  are

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dismissed. Having  regard to  the facts and circumstances of the case there will be no order regarding costs.      The interim  orders passed  by this  Court  are  hereby vacated. In  the result,  the concerned  District Magistrate will now  have to  take appropriate steps to pass on and pay to the  cultivators the differential amount deposited by the dealers pursuant  to this  Court’s orders dated September 2, 1974, and,  October, 10, 1974, as early as possible. And, in any event,  within six  months of  this order,  after proper verification. We order accordingly.      Appeals dismissed. Interim orders vacated. 365      VARADARAJAN, J. Civil Appeal 1656 of 1974 is by special leave. The  other appeals  are by certificate granted by the Allahabad High  Court. All  the appeals  arise  out  of  the judgment of  a Division  Bench of that High Court in a batch of writ  Petitions out  of which  W.P. No.  3421 of 1974 was treated as the leading case. Civil Appeals 1568-1576 of 1974 and batch  have arisen  out of that batch of Writ Petitions. In the  other set  of Civil Appeals another Writ Petition of 1974 is said to have been treated as the leading case by the High Court. The decisions were rendered in Writ Petition No. 3421 of  1974 for  one batch and in another Writ Petition of 1974 for  the other batch. But in all the appeals before us, the judgment in W.P. No. 3421 of 1974 alone was referred to.      The Writ  Petitions filed  under  Article  226  of  the Constitution challenged the validity of a notification dated 14-6-1974 issued  by the  Government  of  Uttar  Pradesh  in exercise of  the power  conferred by Rule 114 of the Defence of India Rules, 1971, directing that no registered dealer of fertilizer shall charge or retain, enter into or enforce any contract for  charging, in respect of any fertilizer sold to any person  on or  after 1.6.1974,  from any  stock held  on 31.5.1974, a  price exceeding the maximum price fixed by the Central Government  for the  sale  of  fertilizer  under  an earlier notification  dated 11.10.1973 issued under Clause 3 of the  Fertilizer (Control) Order, 1957 made in exercise of the power  conferred by  s. 3  of the  Essential Commodities Act, 1955,  as it prevailed on 31-5-1974. The Writ Petitions challenged also  an order  dated  18.6.1974  passed  by  the District Agricultural  Officers directing registered dealers of fertilizers  to refund  the excess  price charged  on the sale of fertilizer effected on or after 1.6.1974 from out of the stock  which was  in existence  on 31.5.1974.  The  Writ Petitions sought the quashing of the said notification dated 14.6.1974 and  also a direction to the District Agricultural Officers and  other District  Authorities  not  to  ask  the dealers to  refund the  excess in respect of sales completed prior to  the date of that notification. The High Court has, while upholding  the  validity  of  the  notification  dated 14.6.1974 and  dismissing the prayer for quashing the  same, directed  the   District  Agricultural  Officers  and  other District Authorities  not to enforce the order for refund of the excess  price realized  on the  sale of fertilizer up to 14.6.1974  from  the  stocks  which  were  in  existence  on 31.5.1974. This  part of  the High  Court’s order has become final and  has not  been challenged by the State Government. This  Court  has  directed  by  orders  dated  2.9.1974  and 30.10.1974 that  the excess  price charged  on the  sale  of fertilizer which  was in  the possession  of the  appellants before 1.6.1974 should be deposited 366 with the District Magistrate concerned within a fortnight of the sales to remain in a separate account.      The fertilizer  in question  is admittedly  a commodity

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controlled under the Fertilizer (Control) Order, 1957 issued by the Central Government in exercise of the power conferred by s.3  of the Essential Commodities Act, 19555. The maximum price for  sale of  fertilizers  by  registered  dealers  to consumers  is   fixed  under  Clause  3  of  the  Fertilizer (Control) Order,  1957 by  notifications issued from time to time. The  sale price of one of the varieties of fertilizers with which  we are concerned in these appeals has been fixed at Rs. 1050 per ton by a notification dated 11.10.1973 which was  in   force  on  31.5.1974.  The  price  fixed  in  that notification for  the sale  of that variety of fertilizer to registered dealers  was Rs. 1005 per ton leaving a margin of Rs. 45 per ton on sale to consumers at Rs. 1050 per ton. The Central Governments  in  supersession  of  the  notification dated 11.10.1973  fixed  the  maximum  sale  price  of  that variety of  fertilizer at Rs. 2000 per ton by a notification dated 1.6.1974,  thus giving an increases of Rs. 950 per ton for that variety to the dealers. The dealers started selling at the  new rates fixed in that notification for the several varieties of  fertilizers. The  Government of  Uttar Pradesh being of the view that the Central Government’s notification dated 1.6.1974  was not  intended  to  apply  to  old  stock procured  by  dealers  at  considerably  lower  prices  from producers which  was in  existence on  31.5.1974 issued  the impugned notification dated 14.6.1974 directing that the old stock should  be sold  at the  old rate  of Rs. 1050 per ton with effect  from 1.6.1974. The Writ Petitions were filed by the  dealers,   some  of   them  for   quashing  the   State Government’s notification dated 14.6.1974, some for quashing that  notification   as  also  for  directing  the  District Agricultural Officers  and other District Authorities not to enforce the  order mentioned  above and  some for the latter direction alone.      The question  for consideration  by the  High Court was the validity  of the  State Government’s  notification dated 14.6.1974 as  regards the stock of fertilizer available with the dealers  at the  end of  31.5.1974, i.e.,  whether  that notification will  prevail  over  the  Central  Government’s notification dated 1.6.1974.      The first  contention urged  for the dealers before the High Court was that fertilizer was not a commodity essential to the community within the meaning of s.3 of the Defence of India Act,  1971 and, therefore, the State Government had no power to fix its price or give 367 any other direction in regard thereto. The learned Judges of the  High   Court  held   that  chemical  fertilizers  being necessary for  increased production  of food  crops and  oil seeds crops  under modern  scientific methods of agriculture would be commodities essential for the life of the community and that  the argument  that trade  in chemical  fertilizers cannot be  regulated under  s.3 of the Defence of India Act, 1971 is untenable. Before us no argument was advanced by the learned counsel for the appellants that chemical fertilizers are not  essential commodities.  On the  other hand,  it was repeatedly contended  that  it  is  an  essential  commodity within the meaning of s.2(1)(a) of the Essential Commodities Act, 1955 and is specifically mentioned as such in s.2(1)(a) (xi) of  that Act.  There is no dispute before us about this matter though  there is  dispute whether  fertilizer can  be brought within  the words  "any article"  mentioned in  Rule 114(2) of  the Defence of India Rules, 1971. Therefore, that question does not arise for detailed consideration by us.      The second  ground of  attack before the High Court was that the  State Government  lacked the  power to control the

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price of  chemical fertilizer  on the  ground that  no  such power is  conferred on  it by the Defence of India Act, 1971 and the  rules framed  thereunder  in  respect  of  chemical fertilizer as  being  needed  for  the  preparation  of  the defence or  connected with  the  prosecution  of  war.  This contention was  rejected by  the learned  Judges of the High Court. It is not necessary for us to consider this aspect of the matter as no such argument was advanced before us by the learned counsel for the appellants. The dispute before us is as to  whether chemical  fertilizer would  fall  within  the words "any  article" found  in Rule 114(2) of the Defence of India Rules framed in exercise of the power conferred by s.3 of the  Defence of India Act, 1971 though it is not disputed that  the   impugned  State  Government  notification  dated 14.6.1974 was  issued when the emergency which was lifted on 22.3.1977 was in force.      The next  contention urged  before the  High Court  was that as  the Central  Government had already fixed the price of chemical  fertilizer by  the notification  dated 1.6.1974 issued under  the Fertilizer  (Control) Order,  1957 made in exercise of  the  power  conferred  by  s.3(2)  (c)  of  the Essential Commodities Act, 1955, the State Government had no power to  fix its  price under Rule 114(2) of the Defence of India Rules,  1971 by the later notification dated 14.6.1974 in exercise  of its  delegated power.  This  contention  was rejected by  the learned  Judges of  the High Court as being unacceptable. The  argument of  the learned Advocate-General appearing for the State of Uttar Pradesh 368 before the  High Court was that by the impugned notification dated 14.6.1974  the State  Government  had  not  fixed  any price,  but   had  only  directed  that  certain  stocks  of fertilizers which  were in  the  possession  of  dealers  on 31.5.1974 shall  be sold  at the  rates fixed by the Central Government in  the  earlier  Notification  dated  11.10.1973 which had  been superseded  by its  own  notification  dated 11.6.1974, has  not been  accepted by  the learned Judges of the High  Court as the basis of their decision. On the other hand, they  have proceeded  on  the  basis  that  the  State Government  has   fixed  the  dealers’  sale  price  of  the fertilizer by  the impugned  notification in exercise of the power conferred  by Rule  114 of the Defence of India Rules, 1971.      The undisputed  fact is  that the  price fixed  for the sale of the fertilizer to dealers was Rs. 1005 per ton under the  Central   Government’s  previous   notification   dated 11.10.1973  which   was   superseded   by   its   subsequent notification dated  1.6.1974 in  which the  price fixed  for sale of  the same  variety of  fertilizer to dealers was Rs. 1960 per  ton from  the date of that notification. The price fixed for  sale by  dealers was  Rs. 1050  per ton under the superseded notification  dated 11.10.1973  and Rs.  2000 per ton in  the notification  dated 1.6.1974. The learned Judges of the  High Court  noted the  obvious fact that the dealers would get  an excessive margin of Rs. 995 per ton in respect of the  old stock  purchased by  them at Rs. 1005 per ton by selling that stock at the new sale price of Rs. 2000 per ton fixed by  the notification dated 1.6.1974, whereas under the notification dated  11.10.1973 their  margin was only Rs. 45 per ton.  They have  expressed the  view that  it could be a legitimate circumstance  to persuade  them to exercise their discretion under Article 226 of the Constitution against the appellants.      The learned  Judges rejected  the contention  urged  on behalf of  the dealers  that  there  is  conflict  of  power

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exercised by the Central Government and the State Government in the  same commodity, fertilizer, by the two notifications dated  1.6.1974   and  14.6.1974  on  the  ground  that  the Essential Commodities  Act, 1955  under which the Fertilizer (Control)  Order,   1957  has  been  made  and  the  Central Government’s notification dated 1.6.1974 has been issued and the Defence  of India  Act, 1971, under which the Defence of India  Rules,   1971  have   been  framed   and  the   State Government’s notification  dated 14.6.1974  has been issued, are both  Central enactments  operating in  different fields and have different objects, that it is only an accident that the  two   notifications  relate   to  the  same  commodity, fertilizer, considered  as an  essential  commodity  by  the Central Gov- 369 ernment  under  the  Essential  Commodities  Act  and  as  a commodity essential to the community by the State Government under the  Defence of India Rules, that the State Government has unfettered  power under Rule 114 of the Defence of India Rules, 1971  to fix the price of fertilizer and regulate its supply  notwithstanding  the  fact  that  fertilizer  is  an essential commodity  under the  Essential  Commodities  Act, 1955 and  that the  State Government  can also  do under the Defence of  India Rules,  1971 framed  under the  Defence of India Act, 1971 what the Central Government can do under the Fertilizer (Control)  Order, 1957  made under  the Essential Commodities Act,  1955.  The  learned  Judges  rejected  the argument of  the learned  Advocate-General that  the Central Government’s notification  dated 1.6.1974  does not apply to stock of  fertilizer which  the dealers  had carried forward from the  stock which  was available  on 31.5.1974  and held that in view of s.37 of the Defence of India Act, 1971 which says that  the provisions  of that  Act  or  any  Rule  made thereunder or  any Order made under any such Rule shall have effect  not  withstanding  anything  inconsistent  therewith contained in  any enactment  other than  that Act, or in any instrument having  effect by  virtue of  any enactment other than  that   Act  confers   supremacy  on  the  later  State Government notification  dated   14.6.1974 over  that of the Central  Government  dated  1.6.1974.  They  held  that  the similar provision  in s.6  of the Essential Commodities Act, 1955 which  says that  any order  made under s.3 of that Act shall  have  effect  notwithstanding  anything  inconsistent therewith in  any other  enactment or  any instrument having effect by  virtue of  any enactment other than that Act will not have  any effect  on the  power of  the State Government exercised under  the Rules  made under  the later Defence of India Act,  1971 which  also is  a Central  enactment on the ground that  the provisions  of the  later enactment prevail over those  in the earlier enactment of the same legislative body in view of s.37 of the later Act.      The learned  Judges of  the  High  Court  rejected  the contention urged on behalf of the dealers that the Essential Commodities Act  is a  special Act  dealing  with  essential commodities and  the Defence of India Act, 1971 is a general Act dealing  with all  other commodities and, therefore, the notification dated 1.6.1974 issued by the Central Government under the  Fertilizer (Central)  Order, 1957  made under the provisions  of   that  Act   must  prevail  over  the  State Government’s notification  dated 14.6.1974  issued under the Defence of  India Rules,  1971, framed  under the Defence of India Act,  1971. They  have observed  that no  question  of special or  general Act arises in these cases in view of the provisions contained in s.37 of the Defence of 370

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India Act,  1971 and  that s.6  of the Essential Commodities Act, 1955  draws within its ambit only those Acts which were in existence  and in  force on  the date  of commencement of that Act  and that it cannot take within its ambit the later Defence of India Act, 1971.      The learned  Judges of  the  High  Court  rejected  the contention urged  on behalf  of the  dealers that  the State Government’s  impugned   notification  dated   14.6.1974  is malafide and motivated and the result of colourable exercise of power. There is no need to refer to this ground of attack in detail  as no  argument was  advanced in this Court about any such ground.      The next  contention urged before the learned Judges of the High  Court on  behalf of the dealers was that the State Government’s notification dated 14.6.1974 was discriminatory on the ground that some governmental agencies falling within the definition  of  "dealer"  in  the  Fertilizer  (Control) Order, 1957 were permitted to sell their stock of fertilizer carried over from 31.5.1974 at the new rate mentioned in the Central  Government’s   notification  dated   1.6.1974.  The learned Judges  rejected this  contention on the ground that the impugned  notification dated  14.6.1974 applies  to  all dealers of  fertilizer equally  and does not provide for any such discriminatory  treatment to  governmental agencies and that the  executive order  to that  effect, if  any, may  be illegal and  would not  invalidate the impugned notification as being discriminatory.      The learned  Judges of  the High  Court thus upheld the validity of  the State  Government’s  impugned  notification dated 14.6.1974  and held  that it  is only  prospective  in operation and  would apply  only to sales of fertilizer made from 14.6.1974 out of the stock which was available with the dealers at the end of 31.5.1974.      The appellants  are dealers in fertilizer as defined in Clause  2(c)   of  the  Fertilizer  (Control)  Order,  1957. According to  that clause "dealer" means any person carrying on the  business of selling fertilizer, whether wholesale or retail. According  to Clause  2(d) of that Order, fertilizer means any  substance used  or  intended  to  be  used  as  a fertilizer of the soil and specified in column 1 of Schedule I and  includes a  mixture  of  fertilizers  and  a  special mixture of  fertilizers. Trade  and  commerce  in,  and  the production, supply  and distribution  of the products of any industry where  the control of such industry by the Union is declared by  Parliament by  law to  be expedient  in  public interest fall  under entry  33 of the Concurrent List III in the Seventh 371 Schedule of  the Constitution. Trade and commerce within the State subject to the provisions of Entry 33 of List III fall under entry  26 of  the State  List II  in the  same Seventh Schedule.  Fertilizer   is  an   essential  commodity  under s.2(a)(xi) of  the  Essential  Commodities  Act,  1955.  The Fertilizer (Control)  Order, 1957, has been made in exercise of the  power conferred  by s.3 of the Essential Commodities Act in  respect of  fertilizer. Under  Clause 3(1)  of  that Order the  Central Government  has power,  with  a  view  to regulating equitable  distribution of fertilizers and making fertilizers available  at fair  prices, by a notification in the official  gazette, to  fix the maximum price or rates at which any  fertilizer may  be sold  by a  manufacturer or  a dealer. The  Central Government  had issued the notification dated 11.10.1973  fixing the maximum sale price by producers to dealers as Rs. 1005 per ton and the maximum sale price by dealers to  consumers as  Rs. 1050 per ton in respect of the

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variety of  fertilizer with  which we are concerned in these appeals. There  is nothing  on record to show that when that notification of  the Central  Government was  in force there was any  notification  of  the  State  Government  of  Uttar Pradesh fixing  the maximum  price of fertilizer for sale by dealers. Subsequently,  the Central  Government  issued  the notification No.  G.S.R.  254E  dated  1.6.1974  fixing  the maximum price  at which  a dealer could sell that variety of fertilizer as  Rs. 2000  per  ton  in  supersession  of  the earlier notification  dated 11.10.1973.  There is no dispute that the  price fixed for sale of that variety of fertilizer by the  producer to  the dealer  is Rs.  1960 per ton. Under s.3(1) of  the  Defence  of  India  Act,  1971  the  Central Government  had  power,  by  notification  in  the  Official Gazette, to  make such  rules as  appear to  it necessary or expedient for  securing  the  defence  of  India  and  civil defence, the  public safety, the maintenance of public order or the  efficient conduct  of military  operations,  or  for maintaining supplies  and services  essential to the life of the community.  Section 1(3)  of that  Act said that the Act shall come  into force  at once  and shall  remain in  force during the  period  of  operation  of  the  Proclamation  of Emergency and for six months thereafter. There is no dispute that the  Emergency which  was in  force when  that Act  was passed was  lifted on  22.3.1977. Rule 114(2) of the Defence of India Rules, 1971 made in exercise of the power conferred by s.3(1) of the Defence of India Act, 1971 says that if the Central Government  or the  State Government  is of  opinion that it  is necessary or expedient so to do for securing the defence of India and civil defence, the efficient conduct of military  operations  or  the  maintenance  or  increase  of supplies and services essential to the life of the community or for  securing the equitable distribution and availability of any article or thing at fair prices, it may, by order 372 provide  for   regulation  or  prohibiting  the  production, manufacture. supply and distribution, use and consumption of articles or  things and  trade and  commerce therein  or for preventing any  corrupt practice  or abuse  of authority  in respect of any such matter.      Rule 114(3)(h) gives power to the Central Government or the State  Government to  fix the  prices or  rates at which articles or things of any description whatsoever may be sold or hired  or for  relaxing any  maximum  or  minimum  limits otherwise imposed  on such prices or rates. It is under that rule  that   the  State   Government  issued   the  impugned notification No.  A-490(V)/XII-1974 dated  14.6.1974  fixing the maximum  price of the concerned variety of fertilizer in these terms  : "No  registered dealer shall charge or retain or enter  into or  enforce any  contract  for  charging,  in respect of  any fertilizer  sold to  any person  on or after June 1,  1974 a  from out  of any  stock carried over by him from May  31,1974 a  price exceeding the maximum price fixed under Clause 3 of the Fertilizer (Control) Order, 1957 as it prevailed on May 31, 1974". The reference to the price as it prevailed on  May 31,  1974 is  to the  price fixed  in  the Central Government’s notification dated 11.10.1973 which has been   specifically    superseded   by    the   Government’s notification dated  1.6.1974. The  High Court  has held that the impugned  notification dated 14.6.1974 is prospective in operation and can apply only to sales made from 14.6.1974 of the fertilizer which was carried over from the stock held at the  close  of  31.5.1974.  It  is  not  disputed  that  the notification could  be only  prospective  in  operation  and would not  apply to  sales effected  up to  14.6.1974 of the

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fertilizer carried over from the stock which was held at the end of  31.5.1974. It  is also  not disputed  that the State Government issued  the impugned notification with the object of preventing  dealers from profiting to the extra extent of Rs. 950  per ton  in respect  of the  stock which  had  been purchased by  them prior  to 1.6.1974 at Rs. 1005 per ton by selling  the   same  at  Rs.  2000  per  ton  fixed  in  the notification dated 1.6.1974 while that stock could have been sold prior  to 1.6.1974  only  at  Rs.  1050  per  ton.  The question is  which of  these two  notification is  valid and should prevail in regard to the fertilizer carried over from the stock held by dealers at the close of 31.5.1974.      The Central  Government’s notification  dated  1.6.1974 issued under  Clause 3(1) of the Fertilizer (Control) Order, 1957 made  in exercise  of the  power conferred by s.3(1) of the  Essential   Commodities  Act,   1955,  and   the  State Government’s impugned notification dated 373 14.6.1974 issued  under Rule  114 of  the Defence  of  India Rules, 1971  made in  exercise of  the powers  conferred  by s.3(1) of the Defence  of India Act, 1971 relate to the same commodity, fertilizer,  which is declared to be an essential commodity under s.2(a)(xi) of the Essential Commodities Act, 1955, and  may ordinarily  fall under  the term  "article or things of  any description  whatsoever"  occurring  in  Rule 114(3)(h) of  the Defence  of India  Rules 1971  and both of them fix  the maximum  price at  which dealers  can sell the fertilizer.  The  Central  Government’s  notification  dated 1.6.1974 applies  to the  whole country  while the  impugned notification dated  14.6.1974 of  the State  Government  can apply only to the State of Uttar Pradesh.      The appellants’  attack on the impugned notification is two-fold. The  first ground  of attack forcibly urged by Mr. P. Govindan  Nair, Senior  Counsel appearing  for one set of appellants is  that the  impugned notification is altogether invalid in  law and  non est  on the  ground that  the State Government has no power whatsoever to issue the notification under the  Defence of India Rules in respect of an essential commodity, fertilizer,  covered by  the Central Government’s notification issued  under the  Fertilizer (Control)  Order, 1957, made  in  exercise  of  the  power  conferred  by  the Essential Commodities Act. The second ground of attack urged by Mr.  Yogeshwar Prasad,  Senior Counsel  appearing for the other set  of appellants  is based  on  Article  14  of  the Constitution,  namely,   that  it   is  discriminatory  and, therefore, bad  in law.  Mr. S.C.  Manchanda, Senior Counsel appearing for  the respondents  in all the appeals naturally submitted that  there is  no substance  in any  of these two grounds.      The second  ground of attack projected by Mr. Yogeshwar Prasad may  be taken up first for consideration. This ground has been  considered by the learned Judges of the High Court as the  fifth ground of attack before them at pages 29 to 31 of the  paper book  in Civil  Appeals 1568-1576 of 1974, and rejected by  them. The submission of Mr. Yogeshwar Prasad is that  some   governmental  agencies   falling   within   the definition of  "dealer" in  the Fertilizer  (Control) Order, 1957 were  permitted by  the State  Government to  sell  the fertilizer carried  over from the stock held at the close of 31.5.1974 at the new enhanced rate of Rs. 2000 per ton fixed in the  Central Government’s notification dated 1.6.1974 and that it  is discriminatory  against the  private dealers who are required by the impugned notification to sell at the old rate of  Rs. 1050  per ton fixed in the Central Government’s old notification  dated 11.10.1973.  To  show  that  such  a

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direction was given by the State Government, Mr. Yogeshwar 374 Prasad invited  attention  to  the  first  sentence  in  the radiogram 23.7.1974  issued by  the Chief  Secretary to  the Government of  Uttar Pradesh. That sentence reads as follows :  "All  stocks  of  fertilizer  available  with  ASO,  AGRO Cooperatives and  Cane Unions  be  distributed  without  any condition regarding  purchase of  fertilizers at new rates". It is  not possible to make out what exactly was intended to be conveyed  by that  sentence  in  the  radiogram.  In  the counter-affidavit of  the Accounts  Officer, Fertilizers and Manures Directorate  of  Agriculture,  Government  of  Uttar Pradesh, filed  in C.M.P.  6773 of  1974 on the file of this Court, it  is stated  that  the  State  Government  has  not allowed any  State  owned  agency  to  sell  the  stocks  of fertilizer carried over from 31.5.1974 at the rates fixed in the Central  Government’s notification  dated 1.6.1974, that the radiogram  was not meant to permit Agricultural Supplies Organisation and  the Agro  Industrial corporation and other governmental agencies  to sell  the stocks carried over from 31.5.1974 at  the revised  rates and  that it  was issued to remove only the condition. There is no other material on the record to  show that  any direction  was given  by the State Government  for   the  governmental  agencies  to  sell  the fertilizer carried  over from 31.5.1974 at the enhanced rate fixed  in   the  Central   Government’s  notification  dated 1.6.1974. Therefore, the very basis of the contention of Mr. Yogeshwar Prasad  that there  is any  discrimination against private dealers  like  the  appellants  represented  by  him compared with  governmental agencies  in the  matter of  the sale price  of fertilizer  has not been established. Even if any such direction had been given, it would certainly be bad in law  as being  discriminatory.  It  would  not,  however, invalidate the impugned notification which per se applies to all dealers  of fertilizers  in the  entire State  of  Uttar Pradesh, whether  private or governmental. Consequently, the impugned notification of the State Government cannot be held to be  bad in  law on  the ground of discrimination if it is otherwise valid.  Mr. Manchanda  relied upon  the  aforesaid counter-affidavit in support of his contention that there is no basis for the contention that there is any discrimination against  private   dealers.  The  second  ground  of  attack projected by Mr. Yogeshwar Prasad fails and has been rightly rejected by the learned Judges of the High Court.      The first  ground is  as regards the power of the State Government  to   issue  the   impugned  notification   dated 14.6.1974, fixing  for the sale of fertilizers by dealers to consumers a  price different  from  the  one  fixed  in  the Central  Government’s   notification  dated   1.6.1974.   In considering this question the fact that the notification was issued by the State Government with the object of preventing dealers in the State 375 of Uttar  Pradesh from  driving under  excessive profit from agricultural consumers  in respect  of the  fertilizer which had been  purchased by  the dealers at Rs.1005 per ton under the old  Central Government’s  notification dated 11.10.1973 and that  it applies to the fertilizer which was in stock at the end  of 31.5.1974,  should not weigh with the Court, for the question  is of  the power  of the  State Government  to issue the  notification. The  question is  whether the State Government has  power to  fix the  price of fertilizer under the Defence  of India Rules, 1971, framed in exercise of the powers conferred by the Defence of India Act, 1971 after the Central Government  had already  fixed the  price under  the

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Fertilizer (Control)  Order, 1957  made in  exercise of  the power conferred  by the  Essential Commodities Act, 1955. If in law  the State  Government could fix the price in respect of  the  limited  stock  of  fertilizer  carried  over  from 31.5.1974, it  can certainly fix the price of the fertilizer received by  the dealers  even after  1.6.1974 in respect of which the  Central Government’s  notification dated 1.6.1974 would undoubtedly apply.      The Essential  Commodities Act,  1955 in  an  enactment passed by  Parliament to  provide, in  the interest  of  the general public,  for the  control of  the production, supply and  distribution   and  trade   and  commerce   in  certain commodities which  have been  notified  under  that  Act  as essential commodities.  The very  object  of  the  Essential Commodities Act  is to  check  the  inflationary  trends  in prices and to ensure the equitable distribution of essential commodities. Section 1(2) of that Act makes it applicable to the whole of India. It is a permanent enactment in the sense that its  operation is  not  restricted  to  any  particular period. The  Fertilizer (Control)  order, 1957 has been made in exercise  of the  power conferred  by  s.3(2)(c)  of  the Essential Commodities Act, 1955 for controlling the price at which  any  essential  commodity  may  be  bought  or  sold. Fertilizer has  been declared  to be  an essential commodity under  s.2(a)(xi)   of  the  Essential  Commodities  Act  as mentioned  above.   Therefore,  the   price  fixed   in  the notification issued  under the  Fertilizer (Control)  Order, 1957 squarely  applies to  fertilizer. The  Defence of India Act, 1971 also is an Act of Parliament which was intended to provide for special measures to ensure the public safety and interest, the defence of India and civil defence and for the trial  of   certain  offences   and  for  matters  connected therewith. That Act also extended to the whole of India, but under s.1(3),  it came  into force  at once  and remained in force during  the period of operation of the Proclamation of Emergency and  for a  period of  six months thereafter. Sub- clause (a)  of Sub-section  (3) of  s. 1 saves anything duly done under the Act as if the 376 Act had  not expired.  As stated earlier the Emergency which was  in   force  when   the  State   Government’s   impugned notification dated  14.6.1974  was  issued,  was  lifted  on 22.3.1977. The  life of  the Defence of India Act, 1971 thus extended upto  six months  after 22.3.1977.  In that way the Defence of  India Act,  1971    was  a  temporary  enactment intended to be in operation for only a limited period.      The Defence  of India  Rules, 1971  had been  issued in exercise of  the power  conferred by  s.3 of  the Defence of India Act,  1971. Under  Rule 114(2)  of those Rules, if the Central Government  or the  State Government  is of  opinion that it  is necessary or expedient so to do for securing the defence of India and civil defence, the efficient conduct of military  operations  or  the  maintenance  or  increase  of supplies and services essential to the life of the community or for  securing the equitable distribution and availability of any  article or  thing at  fair prices, it may, by order, provide  for   regulating  or  prohibiting  the  production, manufacture, supply and distribution, use and consumption of articles or  things and  trade and  commerce therein  or for preventing any  corrupt practice  or abuse  of authority  in respect of any such matter.      Sub-rule (3)(h) of Rule 114 said that without prejudice to the generality of the powers conferred by sub-rule (2) an order made thereunder may provide for controlling the prices or rates  at which  articles or  things of  any  description

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whatsoever may  be sold or hired or for relaxing any maximum or minimum limits otherwise imposed on such prices or rates. The  State   Government’s  impugned  notification  has  been issued,  as   already  stated,  in  exercise  of  the  power conferred by this sub-rule of Rule 114.      The Central  Government had already assumed power under the Essential  Commodities Act, 1955 to control the price of essential commodities  including fertilizer  as a  permanent measure, and  could do  under the  provisions of that Act in relation to  that essential  commodity what  it may do under the Defence  of India  Act, 1971,  a temporary  measure,  if fertilizer  could   be  brought  under  the  description  of "articles or  things of  any  description  whatsoever".  But since it  had already  assumed the power under the Essential Commodities Act,  1955 to control the price of fertilizer it was not necessary for it to get itself armed once again with the power  to  control  the  price  of  the  same  essential commodity under  the Defence  of India  Act, 1971 which came about 16 years later. Therefore, the contention of Mr. 377 Govindan Nair  that the Essential Commodities Act, 1955 is a special enactment relating to only essential commodities and the Defence  of India  Act,  1971  is  a  general  enactment relating to  all  other  commodities,  and  that  the  words "articles or things of any description whatsoever" occurring in Rule 114(3)(h) of the Defence of India Rules, 1971 cannot be understood to include essential commodities has force and has to  be accepted.  It cannot  be assumed  that Parliament which had  already legislated  in the  Essential Commodities Act, 1955,  a permanent  measure, in  respect of  fertilizer intended to  legislate once  again and  could have  felt the need to  legislate once  again in  the temporary  Defence of India Act,  1971 in  respect of the same article, especially because what  could be  done under  the Defence of India Act and the  Rules which  may be framed thereunder could as well be done with equal force under the Essential Commodities Act and orders  which may  be passed  thereunder. Therefore, the contention that the State Government has no power to fix the price of  essential commodities  covered  by  the  Essential Commodities Act,  1955 and  the Fertilizer  (Control) Order, 1957 in exercise of the power conferred on it by Rule 114 of the Defence of India Rules, 1971 issued under the Defence of India Act, 1971 is well-founded and has to be accepted.      Section 3(2)(c) of the Essential Commodities Act, 1955, pursuant to  which the  Fertilizer (Control) Order, 1957 has been made  says that  without prejudice to the generality of the powers  conferred  by  sub-section  (1)  an  order  made thereunder may  provide for  controlling the  price at which any essential  commodity may  be brought  or sold. This sub- clause of  s.3 of the Essential Commodities Act has not left anything to  be done under the Defence of India Act, 1971 in the matter  of fixation  of price of any essential commodity whether it  be for  securing any essential commodity for the defence of  India or for the effective military operation or for securing  the equitable distribution and availability of essential commodities at fair prices or distribution thereof and trade  and commerce  therein as  envisaged in  s.3(1) of that Act.      If the State Government felt that there was any special circumstance to  be taken  into account for fixing the price of the essential commodity fertilizer, in the State of Uttar Pradesh at  a rate  lower than  the one fixed by the Central Government in its notification dated 1.6.1974, it could have achieved that  object by getting steps to be taken under the Essential Commodities  Act itself.  Section 3(2) of that Act

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lays down that the Central Government may, having regard 378 to the  local conditions  of any  area  and  other  relevant circumstances, fix  different prices  or rates in respect of different areas  and for different classes of consumers. The State Government could have requested the Central Government to act under s.3(2) of the Essential Commodities Act and fix a different  price or  rate for  the sale by dealers in that State of  fertilizer carried  over from  the stock  held  on 31.5.1974. Section  5(b) of  the Essential  Commodities  Act provides for  delegation of powers and says that the Central Government may,  by notified order, direct that the power to make or  issue notifications under s.3 of that Act shall, in relation to  such matters and subject to such conditions, if any, as  may be  specified in  the direction  be exercisable also by  such State or such officer or authority subordinate to a  State Government as may be specified in the direction. The Central  Government has  not issued  any direction under s.5(b) of the Essential Commodities Act delegating its power to issue  notification under  s.3 of  that Act  to the State Government or  any officer  or authority of that Government. The State Government has thus not resorted to the provisions contained in  s.3(2) or  s.5(b) of the Essential Commodities Act, but has proceeded to fix the price of fertilizer on its own under  the Defence  of India Rules, 1971 which it cannot do under  those Rules  and the Defence of India Act, 1971 in respect of the essential commodity.      Section 6  of the Essential Commodities Act, 1955 saves any order  made under s.3 of that Act from the impact of any other enactment. It is not possible to accept the contention that the  other Act  or enactment  referred to in s.6 of the Essential Commodities  Act, 1955  would be  only the  Act or enactment which  was in force on the date of commencement of that Act and not any future Act or Acts. This contention has been wrongly  rejected by  the learned  Judges of  the  High Court. Section  6 of the Essential Commodities Act says that an order  made under  s. 3 shall have effect notwithstanding anything inconsistent  therewith contained  in any enactment other than  that Act  or any  instrument  having  effect  by virtue of any enactment other than that Act. It is true that there is  a similar  saving provision in s.37 of the Defence of India  Act, 1971  which says  that the provisions of that Act or  any Rule made thereunder or any order made under any such  Rule   shall  have   effect  notwithstanding  anything inconsistent therewith contained in any enactment other than that Act or in any instrument having effect by virtue of any enactment other  than that  Act. But  as stated  above,  the Defence  of  India  Act,  1971,  which  was  a  general  and temporary Act  and the  Rules framed thereunder cannot apply to fertilizer which is an essential commodity governed 379 by the  Essential Commodities  Act, 1955  and the Fertilizer (Control) Order, 1957 made under the provisions of that Act. Therefore, the  State Government  cannot without  delegation issue any  notification under  the Defence  of India Act and Rules,  1971  in  regard  to  the  price  of  fertilizer  an essential commodity  governed by  the Essential  Commodities Act and  the Fertilizer  (Control) order,  1957. The learned Advocate-General of the State was perhaps fully conscious of the legal  position that the State Government cannot fix the price of  an essential   commodity by any notification under the Defence  of India  Rules, 1971 in the circumstances when he took  the patently  unacceptable stand before the learned Judges of  the High  Court that the State Government did not in  fact  fix  the  price  of  fertilizer  in  its  impugned

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notification dated  14.6.1974  but  it  only  directed  that certain stock  of fertilizer  which was in the possession of dealers at the end of 31.5.1974 and was carried over by them shall be  sold at the rate fixed in the Central Government’s earlier  notification  dated  11.10.1973,  which  as  stated above, has  been specifically  superseded by  its subsequent notification dated 1.6.1974. If the State Government had not fixed the  price at  which fertilizer can be sold be dealers by the impugned notification dated 14.6.1974 though it is no doubt in  respect of  the stock carried over from 31.5.1974, one fails  to see  what else it did or why it was considered necessary. Therefore,  the learned  Judges of the High Court have  rightly   rejected  that  submission  of  the  learned Advocate-General.      As  stated   above,  trade  and  commerce  in  and  the production, supply  and distribution  of the products of any industry where  the control of such industry by the Union is declared by  Parliament by law to be expedient in the public interest fall under entry 33 of the Concurrent List III, and trade  and   commerce  within   the  State  subject  to  the provisions of Entry 33 in the Concurrent List III fall under Entry  26  of  List  II  of  the  Seventh  Schedule  to  the Constitution.   If    the   State    Government’s   impugned notification is  assumed to be a law enacted by that State’s Legislature on  Entry 26  of  List  II,  since  the  Act  of Parliament passed on Entry 33 of List III and the Fertilizer (Control) Order,  1957 passed under that Act were already in force, the  assent of  the President  had to  be received in order that the State Government’s notification assumed to be a law  enacted by the State’s Legislature may prevail in the State as  required by  Article 254(2)  of  the  Constitution which reads thus:           "Where a  law made  by the  Legislature of a State      with respect  to one  of the  matters enumerated in the      Concurrent 380      List contains any provision repugnant to the provisions      of an earlier law made by Parliament or an existing law      with respect  to that matter, then, the law, so made by      the Legislature  of such  State shall,  if it  has been      reserved for the consideration of the President and has      received his assent, prevail in that State:           Provided that nothing in this clause shall prevent      Parliament from  enacting at  any  time  any  law  with      respect to  the same  matter including a law adding to,      amending, varying  or repealing  the law so made by the      Legislature of the State."      There is  nothing on  record to  show that the impugned notification of  the State  Government was placed before the President for  his assent  and  that  his  assent  has  been received.  Therefore,   the  State   Government’s   impugned notification even  as a  law cannot prevail over the earlier notification of the Central Government.      The learned  Judges of the High Court were not right in rejecting the  submission made  before them  that  there  is conflict  between  the  two  notifications  of  the  Central Government dated  1.6.1974 and of the State Government dated 14.6.1974 and  in holding  that  the  State  Government  has unfettered power under the Defence of India Act, 1971 to fix the  price   of   fertilizer   and   regulate   its   supply notwithstanding the  fact that  fertilizer is  an  essential commodity under  the  Essential  Commodities  Act,  1955  in observing and  that what the Central Government can do under the Fertilizer  (Control) Order,  1957 the  State Government can do  under the  Defence of  India Rules, 1971. There is a

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clear conflict  between the  two notifications in respect of the same  essential commodity,  fertilizer,  for  under  the Central Government’s  notification dated  1.6.1974 the price at which  a dealer  can sell  fertilizer  of  the  concerned variety  is   Rs.  2000   per  ton  while  under  the  State Government’s notification  dated 14.6.1974  it is  only  Rs. 1050 per  ton though  no doubt it is restricted to the stock carried over  from 31.5.1974  which is immaterial in judging the power  of the  State Government  to fix  the price of an essential commodity by a notification made under the Defence of India  Rules,  1971  in  respect  of  which  the  Central Government had  already fixed the price under the Fertilizer (Control) Order,  1957. Once  the Central  enactment and the Central Government’s  notification govern  the price  of  an essential  commodity  the  State  Government’s  notification issued in  exercise of  the delegated  authority  under  the Defence of  India Act and the Rules framed thereunder cannot prevail. The Two enactments have 381 to be  read in  such a way that there is no conflict between them while  giving effect to them in their respective fields of operation. On the question of conflict and interpretation of statutes,  we find  the following  passage in  Craies  on Statute Law (seventh edition) at page 222:           "Acts  of  Parliament  sometimes  contain  general      enactments relating  to the whole subject-matter of the      statute, and  also specific  and particular  enactments      relating to certain special matters; and if the general      and  specific   enactments  prove  to  be  in  any  way      repugnant to  one another,  the  question  will  arise,      which is  to control  the other ? In Pretty v. Solly(1)      Romilly M.R. stated as follows what he considered to be      the rule of construction under such circumstances. "The      general rules,"  said  he,  "which  are  applicable  to      particular and  general enactments in statutes are very      clear; the only difficulty is in their application. The      rule is,  that whenever there is a particular enactment      and a  general enactment  in the  same statute, and the      latter, taken  in its  most comprehensive  sense, would      over rule  the former, the particular enactment must be      operative, and  the general  enactment must be taken to      affect only  the other parts of the statute to which it      may properly apply".      The following  passage found at page 187 of the twelfth edition of  Maxwell on  the Interpretation  of Statutes  may also be noticed:           "If  two   sections  of   the  same   statute  are      repugnant,  the  known  rule  is  that  the  last  must      prevail". But,  on the general principle that an author      must be  supposed not  to have  intended to  contradict      himself, the  Court  will  endeavour  to  construe  the      language of  the legislature  in such a way as to avoid      having to  apply the  rule,  leges  posteriors  priores      contrarias abrogant.  For  example,  the  provision  in      order 47  of the  Country Court  Rules 1936  that  "the      scale of  costs in  an action for the recovery of a sum      of money  only shall  be determined....  as regards the      costs of the plantiff, by the amount recovered" was not      construed as peremptory, for this would have brought it      out of  harmony with  the earlier provision in the same      order that "the costs of proceedings in a Country Court      shall be in the discretion of the Court." 382           One way  in which  repugnancy can be avoided is by      regarding  two  apparently  conflicting  provisions  as

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    dealing with distinct matters or situations."      There  will   be  clear   conflict  between   the   two notifications if  it is understood that the State Government also can fix the price of any essential commodity covered by the Essential  Commodities  Act,  1955  and  the  Fertilizer (Control) order,  1957 in exercise of the power conferred on it by  the Defence  of India  Act, 1971  and the  Defence of India Rules, 1971. The conflict can be avoided only if it is held that  the  Essential  Commodities  Act,  1955  and  the Fertilizer  (Control)   order,  1957   deal  with  essential commodities and  the Defence  of India  Act,  1971  and  the Defence of  India Rules,  1971 deal  with all other articles and things  of any description whatsoever. The author of the two enactments,  Essential Commodities Act, 1955 and Defence of India  Act, 1971  is the  same, namely,  Parliament,  and Parliament must  be held  to have not intended to contradict itself while  dealing with  distinct matters  or  situations under those enactments. If the State Governments are free to fix their  own prices  in notifications issued by them under the  Defence   of  India   Rules,  1971   when  the  Central Government’s notification  fixing a  single  price  for  the whole country  in respect  of an  essential commodity  is in force that  notification  of  the  Central  Government  will become otiose. The question is whether Parliament would have intended such  a consequence.  The answer  can  only  be  an emphatic no.  That situation  has to be clearly avoided by a proper  interpretation  of  the  respective  powers  of  the Central and  State Governments  under the  two Acts,  and by holding that  the Essential  Commodities Act,  1955, and the Fertilizer  (Control)   order,  1957   deal  with  essential commodities and  the Defence  of India  Act,  1971  and  the Defence  of   India  Rules,   1971  dealt   with  all  other commodities notwithstanding  that fact  that Rule  114(3)(h) mentions "articles or things of any description whatsoever".      In Municipal Corporation of Delhi v. Shiv Shankar(1) it is observed:           "To  determine  if  a  later  statutory  provision      repeals by implication an earlier one it is accordingly      necessary to  closely scrutinize  and consider the true      meaning and  effect both  of the  earlier and the later      statute. Until this is done it cannot be satisfactorily      ascertained if any fatal inconsis- 383      tency exists  between  them.  The  meaning,  scope  and      effect of  the two statutes, as discovered on scrutiny,      determine the  legislative intent  as  to  whether  the      earlier law  shall cease or shall only be supplemented.      If the  objects of  the two  statutory  provisions  are      different  and   the  language   of  each   statute  is      restricted to its own objects or subject, then they are      generally intended  to run  in paralleled lines without      meeting and  there would  be no  real  conflict  though      apparently it  may appear  to be  so  on  the  surface.      Statutes in  pari materia although in apparent conflict      should also so far as reasonably possible, be construed      to be  in harmony  with each  other and it is only when      there is  an irreconcilable  conflict between  the  new      provision and  the prior  statute relating  to the same      subject  matter,  that  the  former,  being  the  later      expression of  the legislature, may be held to prevail,      the prior law yielding to the extent of the conflict".      If  the   Essential  Commodities   Act,  1955  and  the Fertilizer (Control)  order, 1957  are considered  to  apply exclusively to  fertilizer, an  essential commodity, and the Defence of  India Act,  1971 and the Defence of India Rules,

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1971 are  considered to apply to other commodities excluding essential commodities  there would be no conflict whatsoever between the  Essential Commodities  Act and  the Defence  of India  Act   and  between  the  notifications  issued  under Fertilizer (Control)  order, 1957  and the  Defence of India Rules, 1971. If that is not done there will be real conflict between the  two and,  therefore, the  two Acts  must be  so construed as  to avoid  conflict  in  the  manner  indicated above.      Mr.  Manchanda   invited  attention  to  the  following observation in Zaverbhai Amaidas v. The State of Bombay(1)           "It is  true, as  already pointed  out, that  on a      question  under   article  254(1)  whether  an  Act  of      Parliament prevails  against a  law of  the  State,  no      question of  repeal arises;  but the principle on which      the rule  of implied  repeal rests, namely, that if the      subject-matter of  the later  legislation is  identical      with that  of the  earlier, so  that they  cannot  both      stand together,  then the  earlier is  repealed by  the      later  enactment   will  be  equally  applicable  to  a      question  under  article  254(2)  whether  the  further      legislation by Parliament is in 384 respect of the same matter as that of the State law.’      There is  no question of placing the later law, Defence of India Act, 1971, for consideration by the President under Article 254(2)  of the  Constitution for  both the laws, the Essential Commodities  Act, 1955  and Defence  of India Act, 1971 are laws passed by Parliament. There does not appear to be any  provision for  placing any  notification made  by  a State Government  under the Defence of India Rules, 1971 for consideration by  the President.  As already  stated, if the impugned  State   Government’s  notification   is,  however, considered to  be in  the nature  of a  State law  there  is nothing on the record, to show that it was placed before the President for  consideration and  had received his assent as already stated.      Relying upon the above decision in Zaverbhai Amaidas v. The State  of Bombay  (supra) Mr.  Manchanda  made  a  half- hearted  plea   that   the   impugned   State   Government’s notification relates  only to  fertilizer which  was carried over from  the stock held at the close of 31.5.1974 and that it  is  intended  to  protect  agricultural  consumers  from dealers making undue profit and should therefore, be held to be, valid  in  law.  It  is  not  possible  to  accept  this submission of  Mr. Manchanda. There is no basis, whatsoever, to presume,  and it  will, be  totally uncharitable  to  the Central Government  to presume,  that the Central Government which had  assumed powers  under the  Essential  Commodities Act, 1955 to control the distribution of fertilizer and make it available  at fair prices to consumers was ignorant of or had overlooked  the fact while making the notification dated 1.6.1974  fixing   a  higher   price  for  dealers  to  sell fertilizer to  consumers with  effect from  that  date  that there may be some stock of fertilizer on 31.5.1974 purchased by dealers  at lower  prices which  may be  carried over for sale  subsequently.   What  has   been  done  by  the  State Government  under   the  impugned  notification  is  utterly lacking in  power and  cannot be  allowed  to  stand  merely because it relates only to a comparatively small quantity of fertilizer carried  over from the stock of 31.5.1974 and was intended to  benefit and  protect agricultural consumers and prevent dealers  from making  undue profits. For the reasons stated above  the appeals are allowed and the impugned State Government’s notification  dated 14.6.1974 is quashed. There

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will  be   an  order  directing  the  District  Agricultural officers and  other District  Authorities in  the  State  of Uttar Pradesh not to ask the dealers to refund the excess in respect of  the sales  completed prior  to the  date of  the impugned notification.  The District  Magistrates  concerned shall return  the monies  deposited with them by the dealers pursuant 385 to this  Court’s orders  dated 2.9.1974  and 30.10.1974. The respondents shall  pay the  appellants’ costs. There will be one set  of advocate’s fees in the batch of appeals in which the appellants  are represented  by Mr.  Govindan  Nair  and another set  of advocate’s  fees in the other set of appeals in which Mr. Yogeshwar Prasad appears for the appellants. H.S.K.                                   Appeals dismissed. 386